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Introduction

The Essential Religious Practices (ERP) doctrine, evolved in Shirur Mutt (1954) Case, requires courts to determine whether a practice is essential to a religion to qualify for constitutional protection under Articles 25 and 26. Critics argue that this compels judges to assume a theological role. The emerging Anti-Exclusion approach, particularly articulated in Sabarimala (2018), seeks to shift focus from theological centrality to constitutional harm.

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Critique of the ERP Doctrine and Its Secular Tensions 

• Judicial determination of theology: Courts assess scriptural centrality of practices, effectively acting as religious interpreters.
  Eg: Shirur Mutt v. State of Madras (1954) held that courts can determine what constitutes essential practice.
• Inconsistent application across cases: Different benches have applied ERP variably.
  Eg: Durgah Committee v. Syed Hussain Ali (1961) narrowed protection by excluding “superstitious” practices.
• Theological scrutiny in gender exclusion cases: Courts examined scriptural basis of customs.
  Eg: Indian Young Lawyers Association (Sabarimala, 2018) analysed celibacy-based exclusion of women.
• Risk of majoritarian bias: ERP may privilege dominant interpretations within a faith.
  Eg: Triple Talaq Case (Shayara Bano, 2017) examined whether instant talaq was essential in Islam.
• Secular court engaging in doctrinal analysis: Judicial reasoning often cites religious texts.
  Eg: Hijab Case (Aishat Shifa v. State of Karnataka, 2022) debated whether hijab is essential to Islam.
• Potential dilution of constitutional supremacy: ERP may defer excessively to religious doctrine over rights.
  Eg: Dissent in Sabarimala (2018) cautioned against overreach but acknowledged ERP complexity.

Anti-Exclusion Test and Balancing Faith with Individual Dignity

• Focus on constitutional harm, not theology: Test examines whether practice excludes individuals in violation of dignity and equality.
  Eg: Justice D.Y. Chandrachud’s concurring opinion in Sabarimala (2018) emphasised dignity over essentiality.
• Prioritisation of equality under Article 14: Exclusionary practices tested against equality principles.
  Eg: Sabarimala (2018) struck down age-based exclusion of women devotees.
• Protection of individual autonomy within communities: Individuals’ rights prevail over group-based restrictions.
  Eg: Navtej Singh Johar (2018) prioritised dignity over social morality.
• Shift from doctrinal centrality to impact assessment: Court examines discriminatory effect rather than scriptural mandate.
  Eg: Joseph Shine v. Union of India (2018) invalidated adultery law for violating dignity, not religious doctrine.
• Alignment with constitutional morality: Courts invoke transformative constitutionalism to protect marginalised groups.
  Eg: Shayara Bano (2017) invalidated instant triple talaq on grounds of arbitrariness and gender injustice.
• Harmonising communitarian autonomy with rights: Denominational rights under Article 26 remain protected but subject to fundamental rights.
  Eg: NCT of Delhi v. Union of India (2018) reinforced constitutional morality over institutional dominance (applied analogously in rights balancing).

Conclusion

The ERP doctrine sought to safeguard religious freedom but often entangled courts in theological interpretation. The Anti-Exclusion framework offers a more constitutionally grounded approach by centring dignity, equality, and constitutional morality. By shifting focus from doctrinal essentiality to rights-based harm, it better reconciles communitarian faith with individual liberty in a secular constitutional order.

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